Chris Rush Cohen

This blog is about IP & cyberlaw issues, tech news, and NYC.
I'm a 2005 graduate of the Benjamin N. Cardozo School of Law in NYC.
My email address is ccohen (at) gmail dot com, feel free to drop me a line.

Terror Alert Level

Wednesday, June 30, 2004

iPod vs. Dell DJ

In the several posts linked above, I have recommended looking into the Dell DJ if you are considering getting a hard disk drive based MP3 player because it has double the battery time of the iPod among other differences. I do not yet own a Dell DJ so take my opinion for what it is worth. I do, however, own an iPod and I have had nothing but problems with it.

Anyway, I've been made aware of a Dell DJ blog / user forum which could be useful to those who are in the process of making a decision between the DJ and the iPod, or for DJ owners.

Also, Dell is offering $100 to anyone who buys a DJ and sends Dell their old iPod. A cool idea, but I you could sell any newer generation iPod for more than $100 on eBay anyway.

To be repetitive - the newly introduced INDUCE Act threatens the existence of the MP3 player as a device which induces the infringement of copyrights. See theselinksfor more INDUCE Act info and links.

Blog roll

This is just so exciting and long overdue - I've added a blogroll to the right side of the site, under the archives. It is sure to expand in the future. If anyone would like their relevant link added to the roll just email me at ccohen at gmail dot com. Happy surfing!

Tuesday, June 29, 2004

Save the iPod dot com

Honestly, I hate iPods. I have one and it is a piece of s**t. The only reason most people refuse to admit that they are crap even after all the difficulty they have with them is because they can't stand to admit they paid
$400 for something so crappy. Once you've spent about 40 hours getting it to work right, the battery dies after a few hours of use anyway. Try the Dell DJ if you are going to buy an MP3 player, and get it quick, before the INDUCE Act passes. The Dell DJ is actually made to work with Windows OS and has double the battery power of the iPod, it looks pretty nice too (I'll be getting one soon, I'll do a full comparison here when I do).

Mattel gets nailed

Mattel has been defending Barbie's integrity in lawsuit after frivolous lawsuit recently. Awhile back it was over Aqua's "Barbie World" song, more recently it is a Utah man who incorporated nude Barbie dolls in his artwork.

The photos often depicted Barbie dolls placed in sexually provocative positions. One called "Barbie Enchiladas," shows four Barbie dolls inside a lit oven, wrapped in tortillas and covered with salsa in a casserole dish...Forsythe has said he uses Barbies to criticize "the materialistic and gender-oppressive values" he believes the dolls embody.

Mattel lost its case when a three-judge panel of the 9th U.S. Circuit Court of Appeals rejected Mattel's appeal and said the Utah man had a First Amendment right to parody Barbie because it is a cultural icon (much like the reasoning of the court in the Aqua case). "The panel also said Mattel's lawsuit may have been groundless and unreasonable."

The Utah man, who certainly could not afford to litigate against a monster company like Mattel was later awarded legal fees and court costs of $1.8 Million on remand. He was lucky enough to find pro bono counsel from the American Civil Liberties Union of Southern California and a team of lawyers from a San Francisco law firm, it is the attorneys who get the fees of course.

"Plaintiff (Mattel) had access to sophisticated counsel who could have determined that such a suit was objectively unreasonable and frivolous," Judge Lew wrote in his order. "Instead it appears plaintiff forced defendant into costly litigation to discourage him from using Barbie's image in his artwork. This is just the sort of situation in which this court should award attorneys fees to deter this type of litigation which contravenes the intent of the Copyright Act."

Hopefully this will make companies think twice about going after some of the ridiculous cases they pursue in order to "protect their intellectual property," which really translates to "oppress and chill speech" in these cases.

I am all for the hardcore protection of IP, but like the court said here - Mattel knew this was baseless but tried to bankrupt this guy anyway. That isn't what the IP laws were created for. The US Constitution says copyright is supposed to "promote the arts and sciences," not supress them.

Note: The pic above is not part of the pictures that were at issue in the recent suit.

Update: Howard Bashman at How Appealing has more. You can see the art at issue in the case at Illegal Art. Here is the recent opinion granting the fees to the defendant, here is the older 9th Circ decision in which they said the case was frivolous.

Free WIRED subscription

This site claims to be giving away free subscriptions to WIRED. I know that such things as free magazine subscriptions exist. I figured I'd give it a shot (for me it is a renewal). I figure at the worst you get yourself on a mailing list and don't get WIRED. All they ask for is your name and address. Give it a try if you feel brave.

Gmail account up for grabs!

I'm celebrating the sucess of this blog! About three weeks ago I put up a site meter, signed up with some blog directories, and told a few bloggers about the site. I have recently been getting around 60-80 hits a day and around 1,200 in those three weeks, which is very cool. To celebrate I am giving away a Gmail invite!

I've got a Gmail invite for whoever wants to beg. The conditions - either link to this site from your blog, or write me something I would want to post here on my blog (just put it in the comment and I'll copy and post it). Use the comments to let me know if you link. I'll make the final decision within a few days. Good luck!

Chris Rush Cohen

(P.S. - Maybe I'll even give out an extra one if I get a bunch of entries)

PIRATE Act one step closer to passage, may be passed within a week

On Friday the Senate passed the PIRATE Act, using a speedy method for passage usually reserved from noncontroversial bills. The House still must vote on the PIRATE Act in order for it to become law. The Senate Judiciary Committee is responsible for coming up with these laws.

Congress is attempting to pass the PIRATE Act in a quick and stealthy fashion, similar to how the the Judiciary Committee is attempting to get the INDUCE Act passed. These are both very controversial bills and not a single hearing has been held for either of them. A reason, one suspects, is because the senior members of the Judiciary committe get lots of donations from the entertainment industry: so far in 2004, Patrick Leahy has received $178,000 in campaign contributions from the entertainment industries, that's the second-biggest source of donations to Leahy behind lawyers. Orrin Hatch has received $152,360. These guys have definatly gone out for drinks with Jack Valenti after work.

To actually debate these bills would bring to light the Bill's many problems. The RIAA and MPAA just want them passed, and quickly, before any press and critics get a say.

Foes of the Pirate Act have been alarmed by the unusual alacrity of the proposal's legislative progress. It was introduced just two months ago, on March 25, and not one hearing was held before the Judiciary committee forwarded it to the full Senate for a vote a month later.

For instance, the main change the PIRATE Act will make to US law is that it will allow the Gov't to go after file sharers in a similar fashion to the way the RIAA has been suing them by the hundreds, in civil suits. Typically the Gov't, when going after criminals, file criminal charges against them. Obviously their priorities are other than to prosecute teenage file sharers, considering the concern with such other criminal acts as murder, rape, terrorism, etc. Believe it or not, the Justice Dept does have limited (taxpayer) resources and must pick it's priorities.

The Pirate Act represents the latest legislative priority for the Recording Industry Association of America (RIAA) and its allies, who collectively argue that dramatic action is necessary to prevent file-swapping networks from continuing to blossom in popularity.

They don't want any hearings because there would be some difficule and embarrassing questions:

"I can't imagine that (Hollywood lobbyist) Jack Valenti or (RIAA chairman) Mitch Bainwol really wants to come before Congress and give testimony saying, 'We can't afford to bring these lawsuits. That's why we want the taxpayer to pay for them.' I can't believe they want to do that in public."

Bonus for the entertainment industry, they get to use wiretaps now!

[T]he Justice Department likely would be able to seek wiretaps to collect evidence about P2P infringement. Current wiretap law says electronic communications may be intercepted when a potential federal felony is being investigated.

A basic problem with the PIRATE Act is that it forces the Justice Dept. to do the RIAAs job for it, using taxpayer money. Should the Justice Dept spend a couple million bucks next year suing file sharers? Sounds like a waste to me when the RIAA is doing a fine job already. Also, if the INDUCE Act passes there will be no need to sue file sharers anyway, because there will no longer be any P2P networks or iPods around.

"It represents yet another point in another very long line of major corporate copyright interests pushing for and receiving what amounts to significant corporate welfare," said Adam Eisgrau, a lobbyist for the P2P United trade association. "This legislation literally offloads the cost of enforcing copyrights traditionally borne by the copyright holder onto the federal government and therefore the taxpayers."

INDUCE Act induces journalists to write some good articles

Also, check out the EFF Newsroom for their latest press release. They have also drafted a mock complaint in which "major recording companies" sue Apple because the iPod, induces consumers to infringe copyrights. I'd lay down all my worldly possessions (ain't much) on a bet that if the INDUCE Act passes you'll see a flurry of lawsuits against all the MP3 makers, the companies that make their components, and maybe even retailers who sell them. What would happen then, is that the music companies themselves would control the licensing of the technology and would either let it die off or start doing something like - making MP3 players that require the user's biometric data in order to allow the consumer to listen to the tunes on it. Such devices are already in the works.

Thursday, June 24, 2004

OHMYGAWD!!!

Spam scam at AOL

It's no surprise they busted this spammer in Las Vegas, that's where I would go too after making the kind of money he made by selling AOL's entire email list to his fellow spammers.

An engineer working for America Online was arrested yesterday and charged with stealing 92 million e-mail addresses of AOL customers and selling them to spammers that were peddling penis enlargement pills and online gambling sites.

The engineer, Jason Smathers, 24, was arrested at his home in Harpers Ferry, W.Va., yesterday. Sean Dunaway, 21, who was described by prosecutors as a broker of e-mail lists for spam, was arrested in Las Vegas.

New Beatie Boys CD secretly installs DRM software on computers

It seems that the new Beastie Boys CD, when loaded up on a Windows or Mac OS using computer secretly installs copy protection software onto the users computer. That's pretty dodgy stuff, basically like some sort of hidden malware. I got the CD a few days ago and it ripped on iTunes just fine, but who knows what the copy protection software does. According to The Register the "infected" copy of the CD is being sold everywhere except in the US and UK, so chances are most of us are a-ok. Anyway, it seems there is a way to get rid of it if you have got an infected copy. See the links below for more.

Note: The Register (and several others) provide information on how to defeat the DRM software (digital rights management). If the newly introduced INDUCE Act were to pass in Congress this activity create liability for those sites hosting such information because they have induced others to directly infringe on the copyright. How's that sound? More on the INDUCE Act can be found below.

Wednesday, June 23, 2004

INDUCE Act inducing me to do lots of research

If the INDUCE Act had been around for the Betamax case, we wouldn't have the VCR.

Sorry the posting has been light lately. The reason is that I have been doing research on the INDUCE Act proposal. The question on copyright mavens' minds these days is of course, how will an inducement to infringe doctrine work in copyright? So far it all looks a bit scary, like maybe iPods and silly putty will end up being outlawed.

If you have been out of the loop, in the dark, not in the echo chamber of the blogosphere, and with your head the sand lately; then maybe you have not heard about the INDUCE Act. It is a bill that was introduced by Sen. Hatch this morning that proposes to add a new version of third party liability to the Copyright Act, one of "inducement to infringe a copyright."

The bill is touted as merely shuttling the patent law concept of inducement into the copyright law, thus "bringing copyright law up to date." But the fact is that copyright already has two versions of third party liability that, along with the "substantial noninfringing uses" doctrine from the Betamax case, accomplish the same goals as the inducement doctrine does in patent law.

Since it is apparent that it would be pointless to enact a statute that has no effect on the Copyright Act, one must assume that the INDUCE Act will actually make some changes. We can tell what those changes are because of the INDUCE Acts stated aim - to kill off the P2P networks. In order to do so the induce doctrine in copyright law will have to utilize a general intent standard as opposed to the specific intent standard that the inducement doctrine in patent utilizes. It follows that any creator, manufacturer, or retailer of a device that is clearly capable of infringement may then be liable for inducement to infringe copyright, even without specifically intending to induce the direct infringements by others!

Say good bye to your iPods folks. Seriously, if law was around in the early 80's we wouldn't have been allowed to have VCRs. The INDUCE will eviscerate the doctrine of substantial noninfringing uses. Ouch!

Worst of all, in the longrun, this technology killing bill with impede competition and innovation in the tech sector of the economy. That effects all consumers. So while you may not sympathize with the P2P networks (I don't personally), that doesn't mean you should support the bill. We will all lose with this bill, ironically enough even the media industry will lose, as we saw with the VCR, young immature technologies can often be harnassed in such a way as to become money makers. We may never find out what the mature versions of some new technologies end up being though, because the INDUCE Act will kill them off in their infant stage or even before they are born (who's going to invest in tech capable of copying media after this?).

I'll have much more on this issue in the near future. And it will be less of a rant, I promise.

Tuesday, June 22, 2004

Fun stuff

Absolutly nothing to do with IP law:

So...this guy has 20 foot long dreadlocks, picture here. But really, the reason you should go to the site and see this is not merely because of this man's ridiculous hair, but because you can click on the picture to get a bigger version, and from there you can cycle through all the pictures in the "weird news" section. It's worth it if you have 5 or 10 minutes to slack, there is some crazy (and some no big deal) stuff there.

The pics include, but are not limited to: a wild bear walking right up to some unsuspecting people in a hospital; a dog with prosthetic feet; the biggest sandwich ever; a car dangling out of a parking garage window several stories up; cops trying to pull over an escaping ostrich; a small shark attached to a man's leg; kids breakdancing for the pope; and a fried cow-brain sandwich.

Monday, June 21, 2004

Tiffany v. eBay

Apparently around 73% of all the Tiffany jewelry sold on eBay is counterfiet.

Using eBay programs like VeRO, Tiffany had two employees work full-time policing the site and forced the shutdown of about 19,000 auction sites on eBay, he said. This year, Tiffany randomly bought silver "Tiffany" jewelry on eBay and found that 73 percent of it was counterfeit, 5 percent of it was genuine and the rest was promoted as "Tiffany-like" but not promoted as genuine.

Tiffany has had it up to here, they've filed suit to keep eBay from selling any more counterfiet Tiffany goods. How would eBay know which are real and which fake?

There was a similar case in 2002 - Gentry v. eBay - eBay was sued for selling fake sports merchandise, like signed baseballs, hats and so on. eBay was made aware that a large portion of what was being sold was fake but they did nothing about it and were eventually sued by some customers. eBay was off the hook because they are internet service provider as opposed to the content provider, and thus enjoy near immunity according to the Communications Decency Act (CDA) section 270. At the time, the case represented an expanded interpretation of the immunity the CDA provided. The court found that even though eBay made loads of money from the fake merchandise and had been on notice since 1996 that much of the sports memoribelia being sold was fake, they were not liable because they provided no warranty as to the authenticity of the goods and nor did they provide the content claiming the goods were authentic.

I don't see how this case would turn out any different, unless the courts decided to rein in the now (overly?) expansive protection the CDA provides. Go ahead and type in "tffany jewelry" at eBay, you'll be shocked at how you can get real Tiffany goods for only around $10!

Saturday, June 19, 2004

Bradbury closer to suing over Fahrenheit 9-11 film title?

Bradbury, who is a registered political independent, said he would rather avoid litigation and is "hoping to settle this as two gentlemen, if he'll shake hands with me and give me back my book and title."

The film is being released this friday, so there's really no chance that the title will be changed at this late stage. There's more on the Fahrenhiet 9-11 title issue in this earlier post. There, I wondered if the titles were actually related at all, but they obviously are as Moore has said that Fahrenhiet 9-11 is the "temperature at which freedom burns." Bradbury's book is named Fahrenheit 451 because that's "the temperature at which books burn."

A confusion analysis would probably not work here, as consumers are unlikely to be confused as to the source of the film being Moore and not Bradbury. A dilution analysis may work, if the book's title can be considered a trademark.

"Spam King" smacked by Hormel

Scott Richter, the president of OptInRealBig, is known as the "spam king" (even though he's only the world's third biggest spammer, according to spamhaus). You have almost certainly received email from this man before. OptInRealBig has a pretty professional looking website for a company that sells penis enlargement pills, it seems strange to me that Richter would even try to appear on the up and up. Then again "his 28-employee company, OptInRealBig, clears $2 million in sales each month. He drives a Lexus convertible and a Lexus SUV, owns a half-million-dollar home outside Denver..."

Richter and some of his associates were recently sued by the New York Attorney General Elliot Spitzer:

With cooperation from Microsoft, the New York Attorney General's Office tracked these e-mail messages to identify separate marketing campaigns that passed through 514 IP addresses around the world. The investigation identified Richter in Colorado and his partners in Washington, Texas and New York as responsible for the campaigns.

They also determined that the e-mail messages were developed and sent in violation of the law. Some appeared to come from a foreign government's defense ministry, others from a hospital, and still more from elementary and high schools. According to the lawsuits, those spam e-mail messages used other people's sender names, false subject lines, fake server names, inaccurate and misrepresented sender addresses, or obscured transmission paths, all in violation of New York and Washington state law.

Recently Richter unveiled a "Spam King" clothing line and was promptly threatened by Hormel, the makers of SPAM the pork product "food." Hormel makes their position clear on the SPAM website:

You've probably seen, heard or even used the term "spamming" to refer to the act of sending unsolicited commercial email (UCE), or "spam" to refer to the UCE itself. Following is our position on the relationship between UCE and our trademark SPAM.

Use of the term "spam" was adopted as a result of the Monty Python skit in which our SPAM meat product was featured. In this skit, a group of Vikings sang a chorus of "spam, spam, spam . . . " in an increasing crescendo, drowning out other conversation. Hence, the analogy applied because UCE was drowning out normal discourse on the Internet.

We do not object to use of this slang term to describe UCE, although we do object to the use of the word "spam" as a trademark and to the use of our product image in association with that term. Also, if the term is to be used, it should be used in all lower-case letters to distinguish it from our trademark SPAM, which should be used with all uppercase letters.

Note that one of the first commercial spammings was committed by attorneys Canter and Siegel in 1994 to advertise their immigration law services. Surprised?

Thursday, June 17, 2004

Panda porn

Just to make this an IP related post...I wonder if showing a video that is subject to copyright to Pandas is considered a public performance? How many Pandas would it take to be "public," 20? 30? 100? Could a Panda be considered a "friend" within the meaning of the Copyright Act so as to make a performance nonpublic?

I wonder if they're hiring?

Morrison & Foerster has recently formalized a 25-lawyer video game practice in response to ever-increasing business with the video game industry. Noteworthy is the fact they go by the name "MoFo." Sounds like a pretty hip firm.

We'll need your biometric data before you can listen to your CD's, thanks

I have a funny feeling this isn't going to catch on with consumers...

The RIAA is hoping that a new breed of music player which requires biometric authentication will put an end to file sharing. "In practical terms, VeriTouch's breakthrough in anti-piracy technology means that no delivered content to a customer may be copied, shared or otherwise distributed because each file is uniquely locked by the customer's live fingerprint scan," claims the company.

Sir Tim rakes 'em in, finally

I'm sure that Sir Tim Berners-Lee, the man who invented hypertext and the web browser, and hence the Web itself, is not a poor man. But Tim did offer his ideas and inventions to all of us for free, which was key to the creation of a single worldwide network - the World Wide Web. It didn't have to work out that way, we all owe him big. Luckily, we don't have to pay him back ourselves, because Tim was awarded the first Millennium Technology Prize which comes with a $1,200,000 bonus. That's 1.2 million dollars. Don't spend it all in one place Tim, and congratulations.

"Soul in Yo Bowl" vs. Smokey Robinson

"Soul in Yo Bowl" vs. "The Soul is in the Bowl." Is there consumer confusion here? Both are cajun foods, defendant is Smokey Robinson and his new frozen gumbo, the plaintiff is a Louisiana chef/musician nicknamed "Jambalaya" who once catered a meal for Smokey. Plaintiff contends that there has already been actual confusion. Sounds like a winner to me.

To collect on these purported debts, the defendants, who belong to an antigovernment group called the Moors, have filed million-dollar liens and lawsuits against various public officials, and have threatened to throw them into involuntary bankruptcy.

These guys are an interesting bunch:

[The]defendants are members of an organization called the Al Moroccan Empire, or Moors, a group that does not believe it is subject to the jurisdiction of the United States. They cite a 1790s treaty between the U.S. and Morocco to assert that U.S. laws do not apply to them.

Bloomsday tomorrow, Ireland passes special legislation to allow public display of Ulysses.

For fans of James Joyce's hefty Ulysses, tommorow is a big day, it's the 100th anniversary of Bloomsday. Bloomsday is so named for the main character of the book, Leopold Bloom. The book is a step-by-step account of Bloom's activities on June 16th, 1904 in Dublin, Ireland. Ulysses was published in 1922 and was subsequently banned in Ireland and the US for sometime, in part because it was considered pornographic. it finally became available in the US in 1934 after a landmark decision.

The biggest Bloomsday celebrations occur in Dublin, where visitors mob the city and retrace Bloom's every step through the city and his every act (which includes eating a gorganzola sandwich and a grilled kidney by the way, ugh). The Bloomsday celebrations also typically involve readings from Ulysses, which is of course, a public performance of the work. Public performance is a right reserved to the copyright holder.

Enter Stephen Joyce, ultralitigious greedy copyright fiend (I'm all for strongly enforcing copyrights, but this is a special case). Stephen is James' grandson and has seeminly made a living enforcing his copyrights in James Joyce's works.

He is the man literary Ireland fears most. Stephen Joyce, the highly litigious grandson of Ireland's greatest writer, James Joyce, has devoted his life to fiercely protecting his grandfather's copyright, setting his lawyers on those foolhardy enough to take the Joyce name in vain or to reproduce Joyce's words without consent.

Few are spared. He has targeted publishing houses, internet readings and even an Irish composer who requested permission to quote 18 words of Finnegans Wake and received a letter saying: "To put it politely, my wife and I don't like your music."

But now, fearful for this month's mammoth celebrations of Joyce's masterpiece, Ulysses, Irish MPs yesterday rushed through emergency legislation which will prevent Mr Joyce from suing the government and the National Library over an exhibition which displays 500 pages of Joyce manuscripts bought for €12.6m in 2002.

Stephen has forced the official celebration to forgo doing readings from Ulysses and from performing one of James Joyce's plays by threatening to sue.

Senator David Norris, a Joycean scholar, told colleagues in the Irish Senate: "It is an astonishing irony that a man such as James Joyce, who fought for freedom of expression . . . and committed himself so totally against censorship, should now find his works being . . . removed from public gaze by his own estate."

That's really sad. I'm glad to see that Ireland is smacking Stephen a bit. Can you imagine legislation like this going through in the US? I know that the copyright in the famous Kennedy assasination video was stripped because it was considered to be too important to the US to allow one person to control its viewing.

Cardozo connections

The Benjamin N. Cardozo School of Law is producing not only some very sharp attorneys, but also some terrific, high quality bloggers -

Tech Law Advisor by Kevin J. Heller discusses recent IP and cyberlaw issues.
Second Opinions by Sanford Hausler tracks Second Circuit Court of Appeals cases.
The Blogbook by David Maizenberg, among others, concerns Blawg culture and all things blawggy.
And last, but certainly not least is Susan Crawford, a top notch Cardozo Professor, who blogs on cyberlaw and tech law issues among other things.

If you are aware of any other Cardozo blogs let me know by posting to the comments!

Monday, June 14, 2004

Dating Manhattan attorneys can be costly, beware

I'm sure I know a few people at my law school (Cardozo) that could have authored this email:

To: [X] Subject: Invoice 6/12/04 Date: Sat, 12 Jun 2004 17:15:59 EDT

Dear [WOMAN'S NAME]

On June 5, you agreed to accept dinner, paid for in full, by me, based on your stated offer that we would go out again. In that you have ignored all overtures to said follow up meeting, you are hereby considered in breach of contract.

To that end, you are being invoiced for 50% of the cost of the dinner, pursuant to the offer. For the record, the offer presented you with the option of not going out again and paying for half of the dinner, or going out again and not paying at all. You accepted these terms, choosing to go out again, as stated above, but have since failed to deliver your end of the agreement. In that this was merely a promise to meet, and not a promise to marry, the agreement is binding under New York law and does not require a written agreement (i.e. statute of frauds).

Furthermore, this is absolutely not a joke.

Your share is 50% of $74.51 which is a total of $37.25. Payment in full is expected within 30 days.

Obsessive blogging - Mr. Wiggins' side of the story

Perhaps you saw the New York Times article concerning obsessive blogging that ran in late May (unfortunately the article is now in the NYT archives so you'll have to pay to see it, unless of course you want to see an infringing distribution about halfway down the page on this website or here). I actually saw the article in the International Herald Tribune while in France, on vacation (during which I posted on the rare occasion, I should add). There is a decent summary of the article here.

The article, at one point discusses a Mr. Wiggins and his masturbatory like addiction to blogging. The author creates the image of addicted bloggers sitting on toilets posting to their blogs while on vacation and includes a photo of Mr. Wiggins posting poolside surrounded by relaxing vacationers. According to the article, the addict blogger hides his embarrassing habit from his family and friends like he was shooting up heroin.

Mr. Wiggins' blog is here. He writes about the NYT article here (actually the post largely concerns the computer he is using in the photo), the post includes the picture from the article.

Here's the funny part - apparently Mr. Wiggins actually contacted the reporter to tell her about an idea he had for an article he thought she'd be interested in. She asked him if he'd told anyone else about it, he said no, but noted that he posted about it on his blog, which was read by almost no one. The conversation with the reporter then quickly turned to why he wrote stuff no one reads and voila, the conversation and article topic morphed into one about "obsessive" blogging that made Mr. Wiggins out to be a rather pathetic specimen (whether he was aware of the thrust of the article prior to its publication is unclear). The reporter is completely unsure of why a person would write anything that they are not paid for.

Mr. Wiggins commented on this post on my friend Tom's blog, Tom Thinks, to tell more about his side of the story.

Noteworthy is the fact that Mr. Wiggins posts to his blog far less than most bloggers I know or read (including myself)...does that mean we should all be attending B.A. meetings?

Sunday, June 13, 2004

"iRaq" ads

The "iRaq" posters showing up on the streets of NYC. Parody or satire?

Answer - the clear target of these remixed ads is society/politics in general and not Apple or the iPod, these are satire. The ads are political speech, but the political point they make could be made using any variety of remixed marks, therefore the legal system probably would not recognize the use of Apple's mark as a fair one.

An analysis of a case here may be similar to that of the 1997 "The Cat Not in the Hat" case (Dr. Seuss v. Penguin Books). There, the 9th Circ. found that the Dr. Seuss style book, which targeted O.J. Simpson and his crazy trial, did not sufficiently riducule the original work of Dr. Seuss to be considered a parody. Here is a link to a sample poem. Here's the decision. Herearesummaries of several parody v. satire cases.

Friday, June 11, 2004

EXCLUSIVE: Scoop on Battery Park Counterfeiter Bust!

Today during a walk through Battery Park, only blocks from my apartment, I happened upon a police bust of people who were selling counterfeit purses. The sale of counterfeit purses, sunglasses, watches and whatever else, is common practice in Battery Park, which is typically thick with tourist traffic. Battery Park is located right at the southern tip of Manhattan, where the ferries from Staten Island and the Statue of Liberty leave and arrive. In the 3 acre park there are also several war memorials, and a memorial for the victims of the 9/11 attacks, which occurred only a few hundred feet away.

Battery Park, while popular, is certainly eclipsed by Canal St. as the main New York City spot for selling counterfeit goods. Here is a nice descriptive blog post about Battery Park, pictures of counterfeit material being sold there, and the Park's unofficial site. [Click on any of the pics for a larger version.]

This is the scene after police cordoned off the area, which was teeming with tourists. The two closest men are undercover officers, these aren't secret service agent style under covers with black suits, they look just like normal tourists. Beyond the men and mostly out of view there are several garbage bags full of counterfeit purses the police have confiscated.

Here is a pic from a little further out. On the left of the picture you can see an officer holding a white bag full of counterfeit material. The white car is an unmarked police car.

Here you see some under covers outside of the cordoned off area chatting up a few of those who I suspect were the "innocent until proven guilty" parties (who are on the right). It appeared that the police were going to let the offenders go, only confiscating their counterfeit goods. In my experience those selling the counterfeit purses are almost always immigrants, and I believe that was the case here (African, possibly Senegalese). There probably is little reason to arrest these small time players who are just trying to get by in New York City, this racket is controlled by big time organized crime.

The police didn't like my picture taking and told me to get out of there. I wanted to get an interview with an officer and some more pics, but so goes it. Maybe next time. There were no media photographers or reporters there, but I will follow up and check for further stories or reports.

Bruce Sterling advocates greater law enforcement measures be taken online

Famous sci-fi and nonfiction author and Wired contributor BruceSterling advocates more law enforcement on the Net.

Most of the advancements in Internet commerce since the dot-com bust have been illegal, Sterling noted, including spamming, identity theft, and "phishing," which is theft of credit card numbers or other personal information by directing customers to bogus Web sites to change their account settings. "If you advance into mayhem, that's not advancement, that's driving into a ditch," he added.

I'm not sure I agree with this statement. There have been advancements across the e-commerce board recently, however, it may be that legitimate Internet users are currently losing the arms race against malware writers. It is more disturbing though, when you consider malware as a business itself, and not as a bored teenager at home screwing around.

The authors of the Witty worm targeted users of Internet Security Systems Inc.'s products, while the Bagel and Mydoom virus authors attempted to turn infected computers into spam-sending machines, Sterling said. "Bagel and Mydoom are the future of virus-writing because they have a business model," he said. "Those are organized crime activities. ... These are crooks." Virus and worm writing will grow as a weapon for terrorists and warring nations, he predicted...

"This is the birth of a genuine, no-kidding, for-profit ... multinational criminal underworld," he said. "I don't see any way it can't happen. We're going to end up getting pushed around by bands of international electronic thieves in a very similar way to the way we've been pushed around by gangs of international Mafia and international Mujahideen terrorists."

This is scary stuff, on the other hand, people are becoming more and more suspicious of statements that attempt to tie terrorism to just about everything that's wrong on planet Earth. But then you hear about things like this - terrorist have been making millions by runningcigarettes into New York from southern states where the taxes are much lower. These guys are pretty resourceful.

Thursday, June 10, 2004

Who knew?

A student at a British university is suing his school for negligence. He admits to plagiarism by downloading material from the Web, but claims that he didn't know it wasn't allowed and that the school was negligent for not catching him early on and stopping him.

Michael Gunn, a 21-year-old English student, told the Times Higher: "I hold my hands up. I did plagiarise. I never dreamt it was a problem. I can see there is evidence I have gone against the rules, but they have taken all my money for three years and pulled me up the day before I finished. If they had pulled me up with my first essay at the beginning and warned me of the problems and consequences, it would be fair enough. But all my essays were handed back with good marks and no one spotted it."

I guess this doesn't have much to do with IP law beside the fact that this kid was obviously infringing on copyrights, but it is pretty funny anyway.

TV commerical jams

Caped Masked and Armed dot com is running a series of remixed TV advertisements, check them out. Lessig notes that this is part of the newish remix culture. This remix culture exists largely on the left side of the political stream and is called "jamming," a term popularized by Kalle Lasn's book "Culture Jam." Caped Masked and Armed note on their website:

The following [ad jams] are meant only as humorous, satirical works of art. They are not meant for sale or profit in any way, shape or form. Please see the fair use notice at the bottom of this page. Also If you would like to download and/or add them to your own site, feel free!

They probably meant to say that the ads are parodies, because as we all know, satire is not protected under the fair use provision of the Copyright Act.

A use can contain both satire and parody and will still be fair use, but if the use is soley satirical then it is not fair use. The differece being that satire targets society in general and parody targets the work being used (or the products they advertise in this case). Since these ad jams are noncommerical and are political speech that target the ads they should be considered a fair use of the ads they take footage from. The jams about Fox News and The US Air Force (slightly graphic) are among the most powerful.

Also, check out Gunner Palace dot com. Apparently some soldiers in Iraq are making their own documentary about thier experiences. This is almost certainly unauthorized by the US Gov't. I am not sure I would call it a political remix excactly, but it is certainly futher testiment to the power of digital technology and the Internet to make information available. There are two videos on the page (trailers for the film), check out the rap video, it's actually pretty good and certainly contains a powerful message from one of our soldiers.

Students using pirated textbooks

College students are downloading pirated copies of required textbooks and reading them on their screens or printing them out. I sympathize with these students as a deeply in debt law student. Textbooks often cost $100 or more each, some semesters I have paid out well over $500 for a bunch of books that I will never use again. Apparently textbooks are not all that is available on popular P2P networks such as KaZaA, you can also get copies of the South Beach Diet, The Da Vinci Code, all the Harry Potter books, and so on. If you're really net savvy you can get even more on the IRC (Internet Relay Chat network)at a site called "#Bookz".

Envisional, a company based in Britain that tracks Internet piracy, estimates that 25,000 to 30,000 pirated titles are available on the Web. The vast majority are English-language titles...

Obviously this is all serious copyright infringement and is illegal. As can be imagined the publishing industry has taken notice and is sending out C&D letters and shutting down certain chat sites.

I recommend checking out Project Gutenberg for works that have fallen into the public domain. They have a vast library of classics (and some more recent public domain works) available for free.

Wednesday, June 09, 2004

Donald Duckumentary

It's Donald Duck's 70th birthday. Check out Die Duckomenta for some terrific artwork featuring The Duck as big time artists would have represented him. The presentation may well be an infringing one and may not be up for long. It is a "Duckumentary" of sorts, whether the display is authorized by Disney is unclear.

Brisk domain name sales / new TLD proposals

Not much to do with IP law, just some interesting trivia really. Article here.

A record 4.7 million Internet addresses were sold in the first three months of 2004, bringing the total number of registered addresses to a new high of 62.9 million, according to a study released today by Mountain View, Calif.-based VeriSign Inc.

The growing demand for domain names was fueled in part by the new availability of Internet addresses that use Arabic, Chinese and Russian characters...

More interesting are proposals for new top level domains that ICANN is currently considering. Check here for basic info on the list of proposals, which include .xxx, .mail, .cat, .asia, .jobs, .mobi, .tel, and .travel. Although no TLD will eclipse .com, .net, and .org in importance in the near furure (although .uk and .de are giving them a run for their money), it would be nice to see more internet realestate open up. Also, creating new TLDs would aid in content blocking (ie if porn is put in .xxx it will be easier to block by blocking all .xxx sites) and in fighting spam (by giving only reputable mailers a .mail TLD and blocking others). ICANN is set to make decisions about the new TLDs in December.

However, Tim Berners-Lee, one of the fathers of the Web (he created hyperlinks and the first browser) and certainly a net cognoscenti (netoscenti?), thinks it may be a bad idea to add the new TLDs. One reason is that it will be expensive for trademark owners, who will have to purchase their trademarks in all of the new domain names (which will undoubtedly spark a new load of UDRP proceedings). He is specifically unhappy about .mobi though, because its terms of use appear to violate the universality principle of the Internet by cordoning off a certain section for use by low bandwidth or small screened mobile devices, thus destroying the current independence between Web/software and the Internet as a dumb network. He points out creating a TLD for a specific technology is silly as that technology will likely change dramatically or be eclipsed in the near future anyway.

Fahrenheit 451, or 9-11, or 666

Ray Bradbury is extremey upset over the title of Micheal Moore's new film, Fahrenheit 9-11, which recently won the Palm D'or at the 2004 Cannes film festival. Bradbury said in an interview:

"Michael Moore is a screwed a--hole, that is what I think about that case," Bradbury said according to an English translation of the story. "He stole my title and changed the numbers without ever asking me for permission."

But there are actually other works that use the Fahrenheit title as well, such as Farenheit 666. Perhaps that book wasn't popular enough to be worth getting upset about, or maybe because it is spelled wrong they just figure the author is a moron and not worth the trouble. If you read the interveiw it seems that Bradbury blames Moore for doing in Wesley Clark's campaign for the democratic nomination for president this year by associating himself with the General, apparently Clark was Bradbury's candidate of choice.

So is this infringement? I doubt it. A book title cannot be copyrighted or trademarked. Also, although it seems that the title of Moore's documentary is a reference to Bradbury's book, this isn't really so clear, it could just be a reference to how upset you'll get when you watch the film. Severalarticles, however, assume a connection. Bradbury refused to say whether he would take legal action against Moore.

On Moore's victory at Cannes Bradbury said:

"Who cares? Nobody will see his movie. It is almost dead already. Never mind, nobody cares."
Moore's film won the Palme d'Or award at the Cannes Film Festival last month and is scheduled to hit theaters on June 25.
Of the Cannes award, Bradbury told the paper: "I have won prizes in different places and they are mostly meaningless. The people there hate us, which is why they gave him the d'Or. It's a meaningless prize."

Judging by the sucess of Moore's last film, which made $20 million, and all the hype surrounding Fahrenheit 9-11, the film should be one of the biggest money making documentaries ever. See the trailor here, it's the best political ad this presidential campaign has seen so far. Fahrenheit 9-11 opens June 25th and is sure to spark debate and raise people's temperatures.

Tuesday, June 08, 2004

Don't Mess with Texas' trademarks

Did you know that "Don't Mess with Texas" is actually supposed to refer to keeping their highways clean from litter? I lived in Texas for two years while doing a master's degree and saw the roadside signs all the time. But I never realized that the phrase was created soley for anti-litter campaign purposes. I always figured that the Texas Dept. of Transportation had merely co-opted an old phrase that was generally meant to evoke a macho Texas that once fought for its freedom from Mexico, was once it's own country, and is the biggest state and so on and so forth (you can't even be in Texas for five minutes without hearing all of those truths).

Actually, the "Don't Mess with Texas" phrase came about in 1987, and was only registered in 2000. It was originally created as an anti-littering message, but now appears on loads of unrelated merchandise. Now, all these years later, the Texas Dept. of Transportation wants to enforce its trademark and is sending out cease and desist letters (23 so far). But just consider all of the products this has appeared on, it will be difficult for them to now rein in use of the mark, to say the least.

My guess is that they are now becoming concerned because the phrase is being used by anti-abortion activists that they do not wish to be associated with:

Trademark and patent lawyer Ted Stevenson said the department would have a difficult time showing that consumers were confusing the abortion-rights T-shirts with its anti-litter campaign. However, the state could claim its message is being diluted by the slogan's unauthorized uses.

Starbock:
In other Texas news, Starbucks is suing a bar owner who sells a mixed combo of Shiner Bock and Lone Star beer that he calls "Starbock." I really miss Shiner Bock, can't get it here in New York City. Article here.

Italy to copyright the pizza

This is just bizarre. I realize that there are International rules about what certain liquors can and cannot be named (these laws are typically more strict in Europe, for instance champagne sold in Britain must be labeled as "sparkling wine" if it isn't from France). But to copyright pizza? Good luck enforcing that one.

As the article notes, pizza belongs to humanity. I'm going to head out and grab a slice now (mmmm, New York pizza).

DMCA basics

Here is a great article for people unfamiliar with the Digital Millennium Copyright Act(DMCA) and why it is such contentious law. It briefly explains why it is fair use to copy a VHS tape (the famous Betamax case) but not a DVD according to current legal precedent. The article cites some recent copyright controversies including the 321 Studios and ClearPlay cases and notes that some in Congress are attempting to be remedy this fair use issue through the proposed Digital Media Consumers' Rights Act (DMCRA).

Charts of IP haves and havenots

Monday, June 07, 2004

Santa and the Easter Bunny wrote Linux

The Alexis de Tocqueville Institution, a think tank funded in part by Microsoft, has concluded (but has not yet offered any evidence) that Linus Torvalds did not actually write the open source Linux operating system. This is probably only worth noting because of Linus Torvalds response:

"OK, I admit it. I was just a front man for the real fathers of Linux: the Easter Bunny and Santa Claus. They (for obvious reasons) couldn't step forward to admit that they had gotten bitten by the computer bug and had been developing a series of operating systems on their own during the off-season.

"But when they started with Linux (which they originally called Freax—they do feel like outsiders, you know, and that's a whole sad story in itself), they felt that they could no longer just let it languish in obscurity.

"They started to look for a front man, and since Santa Claus is from Finland, and thus has connections to Helsinki University, and the Easter Bunny claimed, 'He's got good ears, if a bit small,' I got selected.

"Since then, I've lived a life of subterfuge, always afraid that somebody would find out the truth. I'm actually relieved that it's over, and that the Alexis de Tocqueville Institution has finally uncovered the lie. I can now go back to my chosen profession, the exploration of the fascinating mating dance of the aquatic African frog."

Of course, the reality is that the think tank is claiming that most of the material used in the operating system was lifted, not that Linus didn't put it together. But who cares, it's funny.

Wizard People, Dear Reader

A comic book artist from Texas has created an alternate sound and dialogue track for the first Harry Potter film, he has called the new creation "Wizard People, Dear Reader." You see the film as it was shot, but with completely different dialogue.

Sounds pretty funny. Apparently some video rental stores in Texas have bundled Wizard People, Dear Reader with the original film, I'm guessing these aren't chains like Blockbuster. Wizard People, Dear Reader has gotten more attention since being shown at the New York Underground Film Festival recently.

No doubt, Warner Brothers will be taking an interest in this work by means of a cease and desist letter. It certainly appears at first blush that this would be a derivitive work of the original. Creating derivitive works is a right only the copyright owner may excersise. However, this may be a fair use if Wizard People, Dear Reader is parodic to some degree; meaning it criticizes the original work. Also favoring a fair use finding are the facts that Wizard People, Dear Reader will not replace the original in the marketplace and that it is not a blatantly commercial use.

It is not clear that Mr. Neely's soundtrack violates the studio's copyright. Jonathan Zittrain, co-director of the Berkman Center for Internet and Society at Harvard Law School, said that while the copyright holder retains the rights to derivative works, it was possible "Wizard People" was protected under the rules that allow "fair use" of copyrighted works for purposes like criticism, comment and news reporting.

The Wizard People, Dear Reader audiotrack is available for download from Illegal Art dot org (where you can also download DJ Danger Mouse's "The Grey Album," the subject of recent copyright difficulties; and view various other works that infringe on copyrights and trademarks).

Breakdancing Transformers!

Here is a computer rendered music video featuring a breakdancing Transformer (as in the robot toys and show that has apparently regained popularity). It's a fantastic video, but I wonder where people find time for doing this sort of stuff? I am also wondering whether the creators obtained permission to use the trademarks and copyrights they utilize, my guess is no (based mainly on the fact that the video isn't featured on an official Transformers website). This reminds me of the video featuring the Peanuts crew signing Outcast's "Hey Ya." Don't you miss that video? Here's the most recent news on the Peanuts video, I imagine the Transformers one will go the same way.

The WIPO building

Here is a shot of the UN WIPO building in Geneva (or OMPI, if you prefer French). I spoke with various random NGO and UN employees in Geneva while I visited (that's what half of the residents are after all), and they said that WIPO was the fastest growing branch of the UN. Indeed there was a construction project going on at the base of the WIPO building to add a new wing, I left that out of the picture though because it wasn't so attractive. I must say, I would certainly not mind working in this building when I finish law school. Any WIPO employees out there that want to help me out?

Le Disney, the pizzeria?

Disney is very agressive in protecting their intellectual property. I have little doubt that even using this font would get you a cease and desist letter here in the US, and then a lawsuit if you didn't comply. As with the examples in the below posts, a dilution theory would probably be most effective in pursuing a case against this pizzeria since Disney is a famous trademark and it is unlikely that consumers would be confused as to whether this was a Disney owned pizzeria.

I took this photo in the old section of Cannes while on vacation there last week.

Hey...that doesn't look like the Subway I know!

I imagine that Subway, the sandwich chain, would disapprove of this (click on the picture to see a larger version). Like with all these pics, a confusion analysis of US trademark law may be less effective in attacking this use than a dilution theory because few people would probably be confused as to whether or not this fast food joint in Cannes is a true Subway (of the US variety).

Saturday, June 05, 2004

Infringement in Geneva? Mike Wong is asking for trouble.

This is the best and funniest example of trademark infringement that I saw during my vacation in Geneva. I think McDonald's and Nike would both have something to say about Mike Wong's asian fast food joint.

I am unfamiliar with the trademark law in Switzerland, but if Nike or McDonald's were to bring an infringement case against a Mike Wong here in the US they would probably want to use a dilution theory. Reason being, it is unlikely that anyone would be confused by this use of the Nike swoosh or the McDonand's "M", it is just obvious that Mike Wong's has nothing to do with Nike or McDonald's. On the other hand, an infringement by confusion analysis could work, as long as the plaintiffs get some survey results showing that average consumers believe there is some permission from, connection with, or sponsorship by, the plaintiffs in the defendant's use of the trademarks.

By the way, I believe Mike Wong's used to be called McWong's! This travel guide notes: "Rumour has it that the owner has had trouble from McDonald's for imitating their name and logo." Shocker.

Patent problems

I have yet to write a post concerning patent law, but this article on the BBC website piqued my interest. I then noticed this similar article in Wired.

The issue the articles address is the ease of patenting ridiculous and obvious "innovations" and then using them to restrict competition. Clearly no one should be able to patent the double-clicking or holding down of a button on electronic devices, and yet Microsoft has done just that for PDAs. You do not need to be a legal expert to see how this is anti-competitive. The idea is simple and needs to be available for others to use on thier products without facing the threat of legal action. Companies shouldn't have to pay to license such an obvious idea, and MS could always deny such a license to competitors, severly damaging the usability of competing products.

The FTC may be ready to change the practice of granting what many contend are frivolous patents.

Mad cap patents ranging from protecting a method of painting by dipping a baby's bottom into paint or a system for keeping track of people queuing for the bathroom may soon be a thing of the past if the Federal Trade Commission (FTC) has its way.
"The intellectual property system was designed to create incentives for people to innovate by giving them, for want of a better word, a monopoly on their ideas for a certain period of time," FTC commissioner Mozelle Thompson told BBC News Online.
"But we have seen instances where companies use that monopoly in an anti-competitive way, sometimes to prevent other products from getting to market, to prevent people from sharing ideas and to prevent the kind of innovation that the patent system is really trying to spur on."

Essentially, the bar will be raised for what will be a patentable invention. The BBC article points out that a major problem for the PTO (Patent and Trademark Office) is that they are badly underfunded and therefore cannot thoroughly check most applications.

The National Academy of Sciences is calling for more funding for the patent office where 3,000 examiners handle 350,000 applications a year with an average of 17 to 25 hours to check on the validity of a patent application.

My belief is that this situation need be addressed as to not only patent, but also copyright and trademark. It is necesary to toughen the review process in order to renew faith in the US's intellectual property practices generally. My understanding is that courts typically give slight consideration to a work's registration status when considering the validity of its protected status, even where a registration is supposed to be prima facie evidence that the work deserves protection. When even the courts consider the registration process to be a sham then something should be done.

Pictures!

This is a doodle of me, when I had longer hair. This is a test of the photoblogging tool "Hello." Finally, pictures on my blogger website! This is exciting stuff. By the way, I am now back from my vacation. I visited Geneva and Cannes for about two relaxing weeks, and it was damn good.